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S • IN TiE SIGH COURT OF TANZPNIA-. AT AROSHA '-I APPELLATE JURISDICTION HIGH COURT ;CRIMINALAPPEAL- N.233 OF 1974 C/F CROAPPO, NO 0 24, 235,236/74 OPIO-N.AL CRIMINAL CASE NO. 259 OF 1973 .OYTIA DISTRICT COURT OF KOROGWE DISRICT AT KOROGWE --c Berore E.H. Ndunguru ESQQO O OeO O O O C District Magistrate O man Masa iC C 0 0 0 6 C 0 0 0 6 0 0 0 0 0 0 C C Appellant (Original- Acused) 4th accused. 'Tt.-Th 'r1fl1,t, Republic 0 6 0 0 0-0 - 0 0 • 0 00 0 CI Respondent -. - :- - -(Original Prosecutor) Jonathài J. - - - JUDGMENT. - - - The four appellants, whose petitions are consolidated in this appeal and whom I will refer to according to their •: - descriptions in the lower court, were convidted On : a joint hare of robbery with violence, c/se 0 285and 266 of the Penal Code. . •. - The evidence grounding the -convit-ions was mainly that of the complainant (.W.i).. -He said othè 22nd April, T973 at about 2.00 p.m 0 he - trove -lied on a bictc1e to grind hi maize at a mill some il-rn-lies away. There he visited a pombe shop and drank until 7.30 -p.m. when hè'left with his load. tied to the bicycle. He claimed to have seen the appellants at the pomb.e shop and to havebeen familiar with :'1m as ,he had often seen them. W.etiflving the porn'be shop, he added, he saw the accused persons following him and he had not gone far when, as he pushed his bicycle along, the accused caught up with him, beat him up - aid threw him to the ground. They - then 'made off with his bicc1e - and maize flour. It would -- appear he reported the incident to theolice that same night But although he claims to have given the names of the - culprits to the police, it wOuld- appear from the evidence of P C W.4, to whom the report was. made, that he only described the culprits and he did not know their names. - - - - - • 2 L That he did not give names is confiimed, I think, by the fact that the 4th accused vas not arrested. until little more than a moith later while all the othr accused were not apprehended until June 12th, 1973 0 Leading to the arrest of the 4th accued was his being found by P.W.4 riding a bicycle which was basically "Plying Pigeon't in make as was the stolen bicycle of the complainant but whose frame was that o± a diffe±ent make, ."Rajah" (Sic). It appears also'that the frame of the stolen bicycle of the coniplainant was taken to the police byaTanü Chairthan who said, according to P.W4, that he had found it in a bush. This person was however not called and the staterñent attributed to him was hear-say and inadmissible. The sworn evidence of all Thur accused persons was briefly to the effect that they had. had nothing to dowith the offence. In trie main, hovever, they could not be clear if Infect they had vlsItédthe pombeshd onthematerial day.. The 4th acusd both in his statement to P.W.4 and. in his eyidence said as rgards his possession of the exhibit bicycle. that, he had bought bicycle spare parts at Mwanza in the previous year and assembld them süs6 ,quently 'on his return to the village. The learned district magistrate In his judgment referred to and relied on, Inter-ella, the evidenceof P.W.3 that flying "Pigeon" bicycles vhlbh the a Chinese manufacture are not imported into the country with spre parts. The witness, a police officer, as unlikely to be sure that spare prrts fOr such bicycles ve not being imported; it was not his line and it would he been helpful if he had disclosed the source of such knowledge. AccOrdingly, the tridl court should have been cait1us to act on such eyidence.. The. learned magistrate 1so appears to have found that the stolen bicyle was foundin a hush. ThiC, as I have said bove,. was a misdirection as the Tanu Chairman did not testify. : S The evidence thCt the complainant identified the accused persons was not in my view sufficient to ground S the convictions, . . . . /3. - --.: 3.-- • It does not appear that the circurnsta e,wer.e that favourable for him to be cl€ar who his ssoilnt were. It may be noted that ho had probebly bcen drinking for many hours and had got drunk. That would have lcssened onide±abIy h±chsflcëof identifying the rObbers. e i'in answer to th defence he had occasion to say that there was moniight. He wasnIot riding the bicycle; he was puhing it. It is a little doubtful therefore, in fact there was moonlight. The imprcssio±isgthered from his ansi ers that for idcntification he vas relying mainly on his --hving seen them at the pombé shop. Perpetrators of such offences would normally do everything to make identification impossible, and there is no reason to suggest the culprits in the present case behaved differently. Indeed, one tends to think 'th:at there was some indecision on the part of the cpmplain - ñt and the police on whether the accused were the thugs. For there is otherwise no bxplanation for the very considerable delay there was in getting the accused arrested who were, after all, readily available as P.W.2 suggested in his evidence. Ciearly, in my view, the evidence was not sufficient to convict the 1st, 2nd and 3rd accused. As regards the 4th accused, there is the additional evidence that he was found in possession of a "Pigeon" hicycle which fitted with the frame of a "Rajah" bicycle. The prosecution asked that the-conclusion should be drawn from such evidence that the exhibit "Pigeon" frame had been a part of the bicycle the accused was found riding. It probably was, but this could not be certain0 \\ \ The accused, on the other hand, has consistently state1d that he had bought the parts that constituted' the bicycle. \ This may have been a lie, but again, therewas little Oe-rtain ty that it was, and the learned magistrate seems to have rejected his account only because of his unsatisfactpry finding that "Pigeon" bicycles are not imported with spare parts. . . . .